This case arises under the Privacy Act of 1974, Pub. L. No. 93-579, 88 Stat. 1897, 5 U.S.C.A. § 552a (Supp. 1976).
*fn2"
Plaintiff, a special agent employed by defendant Internal Revenue Service (IRS) until the agency discharged him for cause effective July 16, 1976, relies on section 3(d)(1) of the Privacy Act, 5 U.S.C.A. § 552a(D)(1) (Supp. 1976),
*fn3"
as a basis for compelling the agency to disclose the contents of requested documents pertaining to his employment. At issue are an assortment of agency reports, analyses, internal communications and memoranda that contain references to plaintiff and that have some connection with the adverse personnel action taken against him. Plaintiff contends that the materials he seeks are covered by the access provision of the statute
*fn4"
and are not covered by any of the statutory exemptions to disclosure.
*fn5"
The agency makes just the opposite contentions. The agency maintains that the reports plaintiff wants need not be disclosed because they are not contained in a "system of records" as defined by the statute.
*fn6"
Beyond this, the agency argues the analyses, internal communications and memoranda need not be turned over because they are protected by the litigation material exception to disclosure.
*fn7"

The particulars of the controversy are not in dispute. In bare-bones outline, a review of the relevant facts reveals that plaintiff was employed by the IRS as a special agent in the Detroit, Michigan district office until he was dismissed for cause on July 16, 1976. Plaintiff contested his discharge. But the agency concluded that the specifications of misconduct against plaintiff were sustained and warranted his dismissal. Plaintiff appealed this decision, and the case is presently pending before the Civil Service Commission.

On the same date he was dismissed, plaintiff, through his legal representative, a staff attorney working for the National Treasury Employees Union,
*fn8"
made requests under the Freedom of Information Act (FOIA) and Privacy Act for all agency documents in any way related to the adverse action taken against him. These requests were made separately yet, because of the apparent overlap between the two statutes, they were phrased identically and asked for exactly the same materials.
*fn9"
Also recognizing the interface between the two disclosure provisions, the agency considered the dual requests together though it responded to them separately.
*fn10"
The agency then proceeded to release some of the requested information.
*fn11"
But it also withheld much information based on several FOIA exemptions,
*fn12"
while withholding the same and additional materials, including the reports, analyses, communications and memoranda at issue in this case, on the grounds that disclosure of the requested items was not required by the Privacy Act.
*fn13"
The agency informed plaintiff that disclosure of these items was not obligatory since "The portion of information denied to you concerning other individuals [the reports] is not information concerning [you] and therefore, is exempt under the Privacy Act," while "the remaining documents denied to you were compiled in reasonable anticipation of a civil action or proceeding and we assert the exemption under 552a(d)(5) as the basis for our decision."
*fn14"

This lawsuit followed. Plaintiff chose not to litigate the question of whether the FOIA mandates access to the requested documents. Instead, he elected to base his claim solely on the disclosure provisions of the Privacy Act. The contentions of the parties are succinctly stated. The agency avers that the investigative reports sought by plaintiff are not disclosable because they do not qualify as "records" in a "system of records" within the meaning of the statute,
*fn15"
while the balance of requested items need not be disclosed since they are materials prepared by the agency in "reasonable anticipation" of civil litigation.
*fn16"
Plaintiff steadfastly disputes these contentions. The matter is presently here on crossmotions for summary judgment.

II. Basic Statutory Policies and Provisions

The basic policies underlying the Privacy Act are straightforward and do not require extended discussion. A review of the statutory provisions and implementing regulations
*fn17"
reveals a primary aim of safeguarding the interest of citizens in informational privacy by creating a code of fair information practices that delineates the duties owed to individual citizens by federal agencies that collect, store and disseminate personal information about them. The statute does not forbid agencies from collecting, maintaining and using private information about individuals.
*fn18"
Quite to the contrary, various provisions of the Act explicitly recognize the legitimate needs of government departments to acquire, rely on and disseminate relevant personal information. But the statute does impose informational guidelines on federal agencies designed to curb abuses in the acquisition and use of information about citizens brought on by technological developments in the field of computers and the general increase in governmental functions that entail decisions based on private facts.

The implementation of these statutory objectives is also straightforward. To begin with, the statute places general limitations
*fn19"
on the kinds of information agencies are permitted to collect and the ways agencies are allowed to go about obtaining information. Section 3(e)(1)
*fn20"
of the Act permits agencies to store information about individuals only if the records are "relevant and necessary to accomplish a purpose" that is "required to be accomplished by statute or by executive order of the President." Sections 3(e)(2)
*fn21"
and 3(e)(3)
*fn22"
of the statute direct collecting authorities to gather information relevant to agency decision-making directly "from the subject individual" whenever "practicable" and to "inform each individual [asked] to supply information" of reasons for the inquiry so that the decision to furnish information is intelligently and voluntarily made. Worthy of attention in this regard are the requirements that collecting agencies furnish information sources with an indication of the legal authority by which the information is being requested,
*fn23"
a statement about whether the individual is obligated to answer the questions posed to him,
*fn24"
and notice of the consequences of failing to disclose the requested information.
*fn25"

Once agencies have permissibly collected information, they are restricted in what they may do with it. Section 3(b)
*fn26"
of the statute forbids agencies that maintain records from disclosing information "to any person, or to another agency" without the consent of the individual to whom the information pertains. But this prohibition is subject to a number of exceptions
*fn27"
that allow agencies to furnish personal data without the necessity of obtaining consent if, for among other principal reasons, agency staff persons "have a need for the record,"
*fn28"
where the information is subject to mandatory disclosure under the Freedom of Information Act,
*fn29"
where disclosure is to put the information to a "routine use,"
*fn30"
if the record is sought by appropriate authorities for law enforcement purposes
*fn31"
and whenever "a court of competent jurisdiction" orders disclosure.
*fn32"

Sections 3(e)(5) and 3(e)(6) are not the only provisions of the statute designed to assure accurate and complete records, however. In addition to sections 3(e)(5) and 3(e)(6), section 3(d)
*fn36"
of the Privacy Act similarly aims at making sure that agency records contain only complete and accurate information. Section 3(d) operates by giving interested individuals access to agency records that identify and pertain to them so that they can detect misinformation and seek corrective amendments to mistaken records. Specifically, this section operates by allowing access to information contained in any "system of records"
*fn37"
maintained by subject agencies provided that neither the "system" itself nor the kind of information it contains is exempt under the statute.
*fn38"
It then gives requesting individuals the right to seek amendments to their records if they are thought to contain misinformation.
*fn39"
And finally, it allows requestors, in the event agency officials refuse to amend their records as requested, to insert in the appropriate file a "statement setting forth the reasons for [their] disagreement with the refusal of the agency."
*fn40"
It is the scope of the access part of this provision that is the subject of the instant controversy.

Properly understood, the right to access under section 3(d) is aimed entirely at improving informational quality. This is in sharp contrast to parallel rights guaranteed by the Freedom of Information Act. Unlike the FOIA, access to agency records under section 3(d) is not a statutory objective for its own sake. In contrast to the FOIA, the right of access afforded by the Privacy Act is not designed to free up public entry to the full range of government files. Rather, access under the Privacy Act is merely a necessary adjunct to the broader objective of assuring information quality by obtaining the views of persons with the interest and ability to contribute to the accuracy of agency records.

Plaintiff does not dispute that the materials withheld on the authority of section 3(d)(5) were prepared "in reasonable anticipation" of litigation likely to grow out of the adverse action taken against him. Nor could he be given the subject of the documents and the circumstances surrounding their preparation. But plaintiff maintains that the (d)(5) exemption is nevertheless inapplicable. Plaintiff basically contends that the protection afforded by section 3(d)(5) was meant to extend only to items protected under the attorney's work product doctrine, and not, as in this case, to documents prepared by and at the direction of lay agency staff persons.

This reading of the (d)(5) exemption is by no means implausible. To be sure, the legislative history behind the provision hints that the provision was intended to carve out an exception limited to work product materials.
*fn42"
As a remark made during the relevant House debate reveals, "attorney's files that are collected in anticipation of a lawsuit should [not] be subject to the application of the Act in any instance, much less the access provision."
*fn43"
A review of the entire debate, however, shows that the reference to attorney's files was meant only to exemplify the range of materials protected by the exemption, and not to exhaust it. As the debate makes plain, "the purpose of the [exemption] is to protect as an example, the file of the U.S. Attorney or the solicitor that is prepared in anticipation of a suit against the United States for an accident or some such thing."
*fn44"
The inference that emerges from this legislative history is that section 3(d)(5) was meant to afford the broad protection its broad terms imply.

To begin with, section 3(d)(1)
*fn45"
of the statute only mandates disclosure of "information pertaining to [the requestor] which is contained in [a] system [of records]."
*fn46"
This requirement represents a substantial limitation on disclosure since the term "system of records" is restrictively defined as any group of records "from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual."
*fn47"
Only if information about individuals is maintained in groups of records keyed to the requestor are agencies required to afford access. This means that even if information pertaining to the requestor appears in a system of records, it need not be disclosed unless the information is retrievable by means of the requestor's own name or other personal identifier. That it can be easily retrieved in some other way by some other identifier is wholly beside the point.

This example aptly illustrates the situation presented in the case at bar. Here, as in the example, the requested items are not accessed by plaintiff's name or other personal identifier. Rather, they are retrievable by someone else's identifier, in particular the name of the agency investigator who prepared them. It follows from this that these reports fall outside the scope of section 3(d)(1) and hence need not be disclosed.

Plaintiff argues, however, that the Privacy Act regulations are contrary to the intent of the Act and need not be respected. The error underlying this view could not be more basic. "Agency regulations promulgated pursuant to specific congressional authority are presumptively valid and entitled to great deference."
*fn51"
Local 2047 v. Defense General Supply Center, 423 F. Supp. 481, 485 (E.D. Va. 1976). This deference is particularly appropriate where, as here, the regulations "involve a contemporaneous construction of a statute by the [persons] charged with the responsibility of setting its machinery in motion, of making its parts work efficiently and smoothly while they are yet untried and new."
*fn52"
Power Reactor Development Co. v. Electrical Union, 367 U.S. 396, 408, 81 S. Ct. 1529, 6 L. Ed. 2d 924 (1961). The party attacking the regulation carries the burden of "[establishing] that it is inconsistent with the statute it implements." Local 2047, supra at 485. This is an especially weighty burden in the circumstances of this case and, in the Court's judgment, plaintiff has failed to carry it successfully.

V. Disposition

For the foregoing reasons, the Court holds that plaintiff's motion for summary judgment must be denied. And for these same reasons, the Court concludes that defendant's crossmotion for summary judgment must be granted. An appropriate order will be issued of even date herewith.

UNITED STATES DISTRICT JUDGE

ORDER

For the reasons stated in the accompanying Memorandum Opinion, it is by the Court this 14th day of February, 1978,

ORDERED that plaintiff's motion for summary judgment be, and the same hereby is, denied; and it is

FURTHER ORDERED that defendants' crossmotion for summary judgment be, and the same hereby is, granted.

UNITED STATES DISTRICT JUDGE

Our website includes the main text of the court's opinion but does not include the
docket number, case citation or footnotes. Upon purchase, docket numbers and/or
citations allow you to research a case further or to use a case in a legal proceeding.
Footnotes (if any) include details of the court's decision.

Buy This Entire Record For
$7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.